Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)

By Mohamed Isse Trunji

With an increasing recognition of the need to administer competing resources in the ocean and seabed, and the requirement to ensure sustainable exploitation of these resources, Somalia has an ambitious program for the establishment of its maritime boundaries, including the outer limits of its extended Continental Shelf (CS).

In order to realize this program, in August 2014 Somalia instituted proceedings before the International Court of Justice (ICJ) against neighbouring Kenya with regard to maritime boundary dispute in the Indian Ocean.

Somalia asked the Court to:

(a)    Determine, on the basis of international law the complete course of the single maritime boundary dividing all the maritime areas, i.e. Territorial sea, Exclusive Economic zone and Continental Shelf within and beyond 200 nautical miles appertaining to Somalia and to Kenya in the Indian Ocean.

(b)    Determine the precise geographical co-ordinates of the single maritime boundary in the Indian Ocean.

(c)    Adjudge and declare that Kenya by its conduct in the disputed area, has violated its international obligations to respect the sovereignty, and sovereign rights of and jurisdiction of Somalia, and is responsible under international law to make full reparation to Somalia, including, inter alia, by making available to Somalia all seismic data acquired in areas that are determined by the Court to be subject to the sovereignty and/sovereign rights and jurisdiction of Somalia, and to repair in full all damage that has been suffered by Somalia by the payment of appropriate compensation.

Kenyan Preliminary Objections

Kenya however, raised two preliminary objections. One concerns the jurisdiction of the Court, the other the admissibility of the Somalia application.

In its first preliminary objection, Kenya argued that Part XV of the United Nations Convention on the Law of the Sea (UNCLOS) makes provision for method of settlement of disputes concerning interpretation and implementation of UNCLOS. It contended that the Convention’s dispute settlement system is an agreement on the method of settlement for its maritime boundary dispute with Somalia and therefore falls within the scope of Kenya’s reservation to its optional clause declaration made pursuant to Art. 36(2) of the ICJ Statute.

Kenya further stated that the Application was inadmissible because Somalia breached the MoU signed between the two countries in 2014 by objecting to CLCS consideration of Kenya’s submission, only to consent again immediately before failing its Memorial.

On February 2, 2017, the International Court of Justice (ICJ), handed down its Judgment on preliminary objections in the case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)

The Court rejected Kenya’s preliminary objections on jurisdiction and inadmissibility. The maritime boundary dispute between Kenya and Somalia will now proceed to full trial at the International Court of Justice that is likely to take years before it is fully determined.

Somalia wants the court to demarcate the maritime boundary, and to determine the exact geographical coordinates as an extension of its southern borders. Kenya, on the other hand, wants the border to run in parallel along the line of latitude on its eastern border. That gives Kenya the larger share of the maritime area and it had already sold mining licenses to international companies.

UNCLOS and Maritime Delimitation

Maritime delimitation remains an important topic: in boundary-making, sensitive questions of State sovereignty, sovereign rights, jurisdiction and title to valuable natural resources are all put into question. Nowadays, the potential political and security risks of boundary disputes are high, and unresolved maritime boundaries between States may easily affect bilateral relations or even international peace and security. The unresolved maritime boundaries may also cause disputes over certain areas of jurisdiction between States if oil and/or gas discoveries are made in overlapping claimed areas. In the case of Somalia, all its maritime boundaries with neighboring States, i.e., Djibouti, Yemen and Kenya, remain still unmarked.

The maritime zones which would be in most cases subject to boundary delimitation are: the Territorial sea, the Exclusive economic zone and the Continental Shelf. Furthermore, Sates began to realize that the growing importance of the non-living resources of the high seas as being vital to their economic development. These factors resulted in the emergence of the new concept, the Continental Shelf (CS).

The process of resolving two or more states’ competing claims to the same maritime area is referred to as “delimitation.” Thus, for example, if the water area between two States with opposite or adjacent coasts is fewer than 24 nautical miles wide, it will be necessary to delimit the Territorial Sea; if it is more than 24 miles but fewer than 400 miles, each state will possess a full territorial sea but it will be necessary to delimit the EEZ and Continental Shelf.

Delimitation is also necessary as between adjoining states, as a boundary must be drawn to divide the waters from the point where the land boundary meets the sea to a distance of 200 miles from shore.

The negotiations at the United Nations Conference on the Law of the Sea regarding the delimitation of the Continental Shelf and those regarding the delimitation of the EEZ, on grounds of their similarity, were conducted together throughout the sessions of the Conference. The protracted negotiations revealed the existence of two virtually irreconcilable approaches: (i) delimitation should be effected by the application of the median line or equidistance line coupled with an exception for special circumstances; and, (ii) delimitation should involve a more emphatic assertion of equitable principles. It should be noted that, Kenya and Somalia were both among the group of States supporting the equitable principle as the criterion in delimitation. The issue of the delimitation thus hampered the negotiations and became a hard issue on the agenda of the Conference since its inception. During the Conference time, many draft proposals were presented by these two groups of States, the proponents of the equidistant line favouring the equidistance/median line as a standard of delimitation, while supporters of the equitable approach objecting to the very mention of the equidistance/median line as standard for delimitation and rejecting the elevation of that standard to the status of a basic principle.

At the resumed ninth session 1980 direct negotiations between the states most interested in the question of delimitation were conducted, but the delegations were not able to reach a consensus on any further changes to articles 73 and 83

It was at the tenth session of the Conference (1981) that the newly elected President of the Conference. Tommy T.B. Koh (Singapore) undertook direct negotiations with the delegations of Ireland and Spain, as the representatives of the two delimitation groups, with assistance of Ambassador Satya N. Nandan (Fiji). On the basis of those negotiations and discussions, the President submitted a new compromise text for Delimitation of the EEZ/ Continental Shelf between States with opposite or adjacent costs reading

“The delimitation of the EEZ/continental Shelf zone between States with opposite or adjacent coasts shall be affected by agreement on the basis of international law, as referred to in article 38 of the Statute of the international Court of Justice, in order to achieve equitable solution”.

The proposal eventually received the support of both the delimitation groups. The compromise formula was then incorporated in the 1982 Law of the Sea Convention. However, it seems that the compromise formula is too vague, and lack concrete rules and method for delimitation.  Because of the ambiguity in the rules, it has been left for the international courts and tribunals to interpret and apply the common expression of the delimitation to “achieve an equitable solution” in case where the Parties cannot settle their dispute by mutual agreement. “An equitable solution” could be influenced by any or all of the following considerations and circumstances:

–    Historical title;

–    Geographic considerations;

–   The use of islands, rocks, reefs and low tide elevations;

• Geological and geo-morphological considerations;
• Proportionality of the area to be delimited and other circumstances.

Mohamed Isse Trunji
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